Alabama challenges EPA good neighbor rule

(CN) — Alabama and two state power companies told an 11th Circuit panel in Birmingham on Tuesday that the Environmental Protection Agency wrongfully denied a state plan to reduce emissions.

In 2023, the agency rejected “state implementation plans” submitted by 21 states including Alabama, finding they did not comply with the Good Neighbor Provision of the Clean Air Act.

The provision, also known as the Ozone Transfer Rule, was enacted in 2015 to remedy interstate transport of air pollutants. It requires states to prohibit “ozone-forming emissions of nitrogen oxides” from power plants and industrial facilities that travel downwind into neighboring states and affect those states’ national air quality standards.

Alabama, the Alabama Department of Environmental Management, Alabama Power Company and PowerSouth Energy Cooperative argued Tuesday for the approval of their submission, which was based on a determination that sources in the state would not significantly contribute to ozone issues in downwind states.

In their submittal, Alabama explained that numerous existing programs and requirements regulating ozone precursors from state sources have led to reductions in emissions and would remain in force, so continued reductions were expected.

Attorneys for the state and power companies told the 11th Circuit panel that it should be left to the states to determine whether their plans are adequate to prevent significant emission contributions.

But U.S. Circuit Judge Kevin Newsom appeared doubtful of this argument. The Donald Trump appointee expressed concerns that because of the national standards set by the EPA, the agency could “come back and pull the rug out from behind you.”

Counsel for the EPA argued the agency rejected Alabama’s submission because it identified flaws undermining the state’s conclusion that its emissions do not significantly contribute to downwind air quality problems.

Specifically, the agency said Alabama dismissed, without adequate justification, its finding that the state would significantly contribute ozone pollution to Texas.

The circuit judges expressed confusion on how the EPA evaluates each submission and determines whether they comply with the Good Neighbor Provision.

In its brief, the EPA wrote that “states have flexibility to follow the agency’s given framework or develop alternative frameworks to evaluate interstate transport obligations, so long as a state’s chosen approach has adequate technical justification and is consistent with the requirements of the act."

“There are a lot of things I don’t understand about this case,” U.S. Circuit Judge Andrew Brasher said.

“But one thing I definitely don’t understand is what kind of technical justification would need to be provided to meet a contribution threshold? What kind of material would the state need to provide?” the Trump appointee asked.

According to the EPA, Alabama did not include any enforceable emission reduction measures in its submission and that neither its screening analysis or weight-of-evidence assessment used, “holds water.”

The agency also argued that the D.C. Circuit should be the “exclusive venue” for the case and other challenges to its disapproval because it applies nationally to 21 states across 10 federal judicial circuits.

“Like Judge Brasher, there is a lot I don’t understand about this case,” U.S. Circuit Judge Adalberto Jordan said.

The Barack Obama appointee questioned the EPA’s argument that it utilized a nationally consistent framework to evaluate the states’ submissions, when it said each was approved or disapproved individually based on state specific emission contributions.

“So maybe that’s why the approvals would go to a regional circuit, because then the approval is not based on a nationwide determination,” Jordan added. “Now you’re in the particulars of your own situation.”

Numerous other states and industry groups have challenged the EPA’s disapproval in eight circuit courts. The 11th Circuit stayed the disapproval as to Alabama pending its judicial review.

In June, the Supreme Court paused the government’s effort to reduce cross-state air pollution, concluding the “good neighbor” rule would likely be found arbitrary and capricious in a full proceeding before the D.C. Circuit.

The three-judge circuit panel did not indicate when they will issue a ruling.

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